Bombay HC gives split verdict in case challenging FCUs under IT Rules

Justice Patel ruled in favour of the petitioners, striking down the rule and Justice Gokhale dismissed the petitions, and upheld the rule

The Bombay High Court on Wednesday delivered a split verdict on a plea challenging the validity of the Fact Checking Unit (FCU) under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.

The bench, comprising Justices GS Patel and Neela Gokhale, issued the verdict on petitions filed by stand-up comic Kunal Kamra, the Editors Guild of India, the Association of Indian Magazines, and the News Broadcast and Digital Association, challenging Rule 3 of the IT Rules. This rule empowers the Central government to form the FCU to identify fake or false news.

Justice Patel sided with the petitioners, striking down the rule, while Justice Gokhale dismissed the petitions and upheld the rule.

 

Solicitor General Tushar Mehta, representing the Ministry of Electronics and Information Technology (Meity), stated that the government will refrain from notifying the FCU in the next 10 days.

The matter will now be referred to a third judge as per the Bombay High Court Rules. It was orally noted that the Chief Justice might take some time to assign the matter to an appropriate bench.

The fact-checking unit, under the Information Technology Rules, is authorised to tag what it deems fake news online related to any activity of the Central government.

The Union government notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, on April 6, 2023. This marks the second amendment to the original IT Rules, first notified in February 2021 and subsequently amended on October 28, 2022.

The IT Rules stipulate that intermediaries such as Facebook, X, and other social media platforms should make “reasonable efforts” to prevent users from uploading information about the Central government “identified as fake or false or misleading”.

Kunal Kamra, in association with the Internet Freedom Foundation, filed a court case challenging the constitutionality of the fact-checking unit.

He contended that the new IT Rules could lead to his content, predominantly political satire, being arbitrarily blocked, or his social media accounts being suspended or deactivated, adversely affecting his professional life.

Kamra argued that content flagged by the fact check unit would compel telecom service providers and social media intermediaries to act against such content, risking loss of their safe harbour protection under Section 79 of the Information Technology Act if they fail to do so.

Meanwhile, the Union government maintained that the fact-checking unit would only identify fake or false or misleading information and not any opinion, satire, or artistic impression. “Therefore, the aim of the government regarding the introduction of the impugned provision is explicitly clear and does not suffer from the alleged arbitrariness or unreasonableness as claimed by the petitioner (Kamra),” said the Centre.

The division bench had previously expressed concerns that the rules did not appear to protect fair criticism of the government, such as parody and satire.